What Is An LPA Attorney?

At Blackstone Solicitors, we understand that making decisions about your future can sometimes feel overwhelming, especially when it comes to protecting your interests if you lose the ability to make decisions for yourself. One important step you can take is setting up a Lasting Power of Attorney (LPA). But what exactly is an LPA attorney, and what do they do? In this article, we’ll explore the role of an LPA attorney, how they are appointed, and the responsibilities they hold. Whether you are considering appointing an LPA attorney or have been asked to act as one, this guide will provide you with the essential information you need.

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What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a legal document that allows you (the ‘donor’) to appoint one or more people (known as ‘attorneys’) to make decisions on your behalf if you lose mental capacity or no longer wish to make decisions for yourself. An LPA provides you with peace of mind by ensuring that someone you trust will handle your affairs if you are no longer able to do so.

There are two main types of LPAs:

1. Property and Financial Affairs LPA – This type of LPA gives your attorney the authority to make decisions about your finances and property. This could include managing your bank accounts, paying bills, or selling your home.
2. Health and Welfare LPA – This type of LPA allows your attorney to make decisions regarding your personal health and welfare. It covers matters such as medical treatment, care arrangements, and even decisions about life-sustaining treatment if you are unable to communicate your wishes.

What is an LPA Attorney?

An LPA attorney is the individual (or individuals) you appoint to make decisions on your behalf if you lose the ability to do so. The person you choose as your attorney must be someone you trust, as they will have the authority to make significant decisions regarding your health, finances, and welfare.

When choosing an attorney, you can appoint one or more people, and you can decide how they will work together. Your attorneys should understand that the role is a serious responsibility and requires them to act in your best interests at all times.

Who Can Be an LPA Attorney?

The role of an LPA attorney is open to most people, but there are some eligibility requirements. To act as your attorney, a person must:

• Be over 18 years old.
• Not be bankrupt (for Property and Financial Affairs LPAs).
• Be mentally capable of making decisions.

Many people choose close family members, such as a spouse or adult children, to act as their attorneys. However, you can also appoint trusted friends or professionals, such as a solicitor, to take on the role. It’s important to think carefully about who is best suited to the task, as the person you choose will have a significant impact on your life if you lose capacity.

What Does an LPA Attorney Do?

An LPA attorney is responsible for making decisions on your behalf according to the type of LPA you have set up. Their duties will depend on whether they are appointed under a Property and Financial Affairs LPA or a Health and Welfare LPA—or both.

1. Property and Financial Affairs LPA Attorney

If you have set up a Property and Financial Affairs LPA, your attorney will be responsible for managing your financial affairs and property. This could include:

• Managing your bank accounts: Your attorney will have access to your bank accounts and can manage your day-to-day finances, ensuring that bills are paid, and money is managed effectively.
• Paying your bills: Your attorney can handle the payment of utilities, mortgage payments, rent, and other ongoing expenses.
• Selling or managing property: If necessary, your attorney can sell your home or other property on your behalf, especially if you need to move into a care home.
• Handling investments: Your attorney may be responsible for managing any investments, ensuring that your financial resources are used effectively.
• Managing business interests: If you own a business, your attorney may also be responsible for managing your business affairs, depending on how you have structured your LPA.

It’s important to note that an attorney under a Property and Financial Affairs LPA can begin making decisions as soon as the LPA is registered, provided that you have given them permission to do so. Alternatively, you can specify that they will only act if you lose mental capacity.

2. Health and Welfare LPA Attorney

An attorney appointed under a Health and Welfare LPA is responsible for making decisions about your personal health and wellbeing. This could involve:

• Making decisions about medical treatment: Your attorney can decide which medical treatments you receive, including decisions about surgery or other procedures.
• Care arrangements: Your attorney will have the authority to make decisions about where you live, including whether you should move into a care home and what type of care you should receive.
• Life-sustaining treatment: One of the most significant responsibilities of a Health and Welfare LPA attorney is the ability to make decisions about life-sustaining treatment if you are unable to communicate your wishes. This includes decisions about whether to continue or withdraw medical treatment, such as life support.

Unlike a Property and Financial Affairs LPA, a Health and Welfare LPA only comes into effect if you lose mental capacity, meaning your attorney cannot make decisions until you are no longer able to do so.

How Many Attorneys Can You Have?

You can appoint one or multiple attorneys under your LPA. If you choose more than one attorney, you will need to decide how they will make decisions. There are three main options:

• Jointly: Attorneys must make all decisions together and agree unanimously. This can provide a level of security, as no single attorney can act alone, but it may slow down decision-making if the attorneys cannot reach an agreement.
• Jointly and severally: Attorneys can make decisions either together or independently. This provides flexibility, as any attorney can make a decision if necessary, but it still allows for collaboration on significant matters.
• Jointly for some decisions, severally for others: You can specify that your attorneys act jointly for major decisions, such as selling property, but severally for more routine matters like paying bills. This approach offers a balance of control and flexibility.

What Are the Legal Duties of an LPA Attorney?

Attorneys have a legal duty to act in the best interests of the donor. This includes:

• Acting with care and diligence: Attorneys must carry out their duties carefully, ensuring they make well-informed decisions that benefit the donor.
• Following the donor’s instructions: If the donor has included specific instructions in the LPA, the attorney must follow these instructions.
• Acting within the law: Attorneys must comply with the law, including following rules set out by the Mental Capacity Act 2005, which governs the use of LPAs.
• Maintaining records: Attorneys managing finances must keep accurate records of how money is spent. The Office of the Public Guardian (OPG) may ask to see these records if there are concerns about how the attorney is managing the donor’s affairs.
• Avoiding conflicts of interest: Attorneys should always act in the donor’s best interests and avoid making decisions that benefit themselves rather than the donor.

Can You Remove or Replace an Attorney?

Yes, you can remove or replace an attorney if your circumstances change, as long as you have the mental capacity to do so. To remove an attorney, you will need to notify the OPG and make the necessary changes to your LPA.

If you lose mental capacity and one of your attorneys becomes unable to act (for example, due to illness, death, or personal circumstances), a replacement attorney can step in if you have named one in your LPA. It is often a good idea to appoint a replacement attorney to ensure that your affairs are always managed, even if your original attorney cannot continue in their role.

What Happens If an Attorney Misuses Their Powers?

Attorneys have a duty to act in the donor’s best interests, but if they fail to do so or misuse their powers, the OPG can intervene. The OPG has the authority to investigate concerns about an attorney’s conduct and, if necessary, remove them from their role. This might happen if there is evidence of financial mismanagement, neglect, or any other form of abuse.

If you are concerned about the actions of an attorney, it is important to seek legal advice. At Blackstone Solicitors, we can help you understand your rights and take action if necessary.

At Blackstone Solicitors, we have extensive experience in advising clients across England and Wales on setting up LPAs and appointing attorneys. Whether you are looking to appoint an attorney for yourself or have been asked to act as an attorney for someone else, we can provide expert legal advice to ensure that everything is done correctly and in accordance with your wishes.

Conclusion

An LPA attorney is someone you trust to make crucial decisions about your health, welfare, and finances if you are no longer able to do so yourself. Appointing an attorney under an LPA is a significant decision, and it’s important to choose someone who understands the responsibilities involved. Whether you are planning your own LPA or acting as an attorney, understanding the role and its legal duties is essential to safeguarding the donor’s interests.

How we can help

We have a proven track-record of helping clients create a lasting power of attorney. This also includes all the different types, even if you need more than one. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.

How to Contact Our Wills and Probate Solicitors

It is important for you to be well informed about the issues and possible implications of creating a Lasting Power of Attorney. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.

To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.

Authored by Ben Posted in Blog, News Tagged as

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